Manning v. Maroney

• Decision Date: 20 May 1889
• Citation: 87 Ala. 563,6 So. 343
• Parties: MANNING v. MARONEY.
• Court: Alabama Supreme Court

6 So. 343

87 Ala. 563

MANNING v. MARONEY.

Supreme Court of Alabama

May 20, 1889

Appeal from circuit court, Marshall county; JOHN B. TALLY, Judge.

Action by Frank M. Maroney against William Manning, on a bill of exchange drawn by the defendant on Hill, Fontaine & Co. Memphis, Tenn., in favor of one La Fayette Maroney, and indorsed by said La Fayette Maroney to the plaintiff in this action. To the complaint, as originally set out, the defendant interposed demurrer on the ground that the complaint does not show that the bill of exchange was ever presented to the drawee for payment; that it was never protested for non-payment or non-acceptance; and that the defendant had never been notified of such protest. The court sustained this demurrer, and the plaintiff was allowed to amend his complaint, which he did by setting out the cause of not having the bill protested, and of not notifying the defendant thereof, which was that the defendant had notified the drawees not to pay the bill when presented. The defendant then pleaded (1) the general issue, and by special pleas; (2) that the bill of exchange was not in any manner presented to the drawees for their acceptance and payment, nor had the defendant, the drawer, any legal or sufficient notice of such non-acceptance or non-payment; and also pleaded (3) and (4) set-off, by undertaking to set off to the plaintiffs claim on the bill of exchange a promissory note of the indorser of the bill sued on, La Fayette Maroney, made by said indorser to the firm of Jordan, Manning & Co., of which firm the defendant was a member, and also an account held by said firm against the said La Fayette Maroney. The plaintiff demurred to the second, third, and fourth pleas of defendant. The demurrer to the second plea was sustained, and was overruled as to the third and fourth. Thereupon the plaintiff filed his replication to the third and fourth pleas of set-off "That he was a bona fide purchaser of said bill of exchange in the usual course of trade, and had no notice of any set-off in the hands of the drawer against the payee of said bill at the time he became the purchaser of said bill." Issue was joined on this replication, and on the plea of the general issue.

On the trial of the case, as shown by the bill of exceptions, the plaintiff offered to introduce in evidence the bill of exchange which was the foundation of the suit. It was indorsed by the payee to the plaintiff, and was indorsed in blank by F. M. Maroney and John G. Winston, Jr.; and across the face of said bill of exchange there was written the following indorsement: "At an examination of witness Noland Fontaine, by virtue of the annexed commission this paper was produced and exhibited to said witness, and by him deposed to and subscribed, and identified as Exhibit No. A M. B. FREZEVANT, Commissioner. Deposed to by me this July 26 1887. N. FONTAINE." When thus offered in evidence by the plaintiff, this bill of exchange was attached to the deposition of N. Fontaine, which was taken by M. B Frezevant, as commissioners. To the introduction in evidence of said bill the defendant objected, on the ground that said bill shows on its face, by the indorsements thereon, that it is not the property of the plaintiff; that there is no proof that the said bill was ever presented for payment to the drawees; that the said bill is defaced and mutilated; that there is no proof that the same was ever protested; and that there is no proof that the defendant was ever notified of such protest. The court overruled these objections, allowed the paper to be introduced in evidence, and the defendant duly excepted. The evidence for the plaintiff showed that he had purchased the bill of exchange from the payee therein, had paid a valuable consideration, and had no notice of any defense or set-off held against the bill by the defendant, or by the firm of which he was a member; that he indorsed the bill in blank to John G. Winston, Jr., his attorney, in order to have him send it to Hill, Fontaine & Co. for remittance of the amount therein specified; and that when said Winston did send it to said drawees he indorsed it blank. In the deposition of one Noland Fontaine, who was a member of the firm of Hill, Fontaine & Co., the drawees in the bill of exchange, he testified "that he had examined the draft or bill above set out, and that it was sent to said Hill, Fontaine & Co. in a letter by John G. Winston, Jr., for remittance, and was returned to him by letter from us on November 18, 1886, as Hill, Fontaine & Co. had been instructed by letter from Wm. Manning not to pay same. " To the above italicized words in the answer of the witness the defendant objected, and moved the court to exclude the same from the jury, because they were not responsive to the interrogatory propounded, and were in relation to the contents of a written instrument, the loss of which was not accounted for. The interrogatory to which the above language was an answer was as follows: "Examine the paper attached to these interrogatories, signed 'WM. MANNING,' and marked 'No. A.' State whether or not the said paper was ever presented to your firm for payment or acceptance. If you say it was, give the time, place, and by whom." The court overruled the defendant's objection to this evidence, permitted the same to be read to the jury, and the defendant excepted. The plaintiff then called the defendant to the stand, and proved by him that he, "shortly after drawing the bill in suit, instructed Thomas J. Cochran to write to Hill, Fontaine & Co., Memphis, Tenn., and instruct them not to pay said bill of exchange or draft." To this evidence the defendant objected for many reasons, among which were that the letter of which witness was testifying was not shown to have been lost or destroyed, and a diligent search made therefor; that it had not been shown that said letter was beyond the jurisdiction of the court. The court overruled these objections of the defendant, allowed the testimony of the defendant to go to the jury, and the defendant duly excepted. The evidence for the defendant showed that the payee of the bill of exchange had made a note to the firm of Jordan, Manning & Co., of which the defendant was a member; and that the said payee was indebted to the said firm by an account; and that the said defendant had the consent and permission of all the members of said firm to set-off the said note and account of said payee against the action of the plaintiff in this cause. After the introduction of all the evidence the defendant moved the court to exclude all the testimony "in relation to the contents of the letter, including the statement of the witness Fontaine." The court refused to grant the motion, and the defendant thereupon excepted.

In the general charge the court, among other things, charged the jury "that, unless the defendant held and owned the note and account of La Fayette Maroney to Jordan, Manning & Co. prior to the indorsement of the bill of exchange to plaintiff, and that at or before the time of such transfer and indorsement of said bill the plaintiff knew of said indebtedness of La Fayette Maroney to Jordan, Manning & Co., and that the defendant owned the same, the defendant would not be entitled to the same as a set-off against this action." To the giving of this charge the defendant excepted, and asked the court to give the following charges in writing, and duly excepted to each refusal by the court: "(1) If the jury believe the evidence, they must find the issue in favor of the defendant. (2) If the jury find from the evidence that the plaintiff, at the time or before the time of his purchasing the bill of exchange sued on, knew that the payee, La Fayette Maroney, was owing the firm of Jordan, Manning & Co., and they further find that William Manning was a member of said firm of Jordan, Manning & Co., and the plaintiff knew that William Manning was a member of said firm, then he would not be a bona fide purchaser for a valuable consideration without notice; and if they further find from the evidence that at the time of the bringing of this suit the said La Fayette Maroney was owing the said Jordan, Manning & Co. the note offered in evidence, and the account offered in evidence, and proven by Thomas J. Cochran, the defendant would be entitled to have the amount of said note and account, with the interest thereon, by way of set-off against said draft, and, if said note and account are equal to or exceed the amount of said bill of exchange, their verdict must be for the defendant. (3) If the jury believe from the evidence that the plaintiff at the time he purchased the bill sued on knew that the payee and his indorsee was owing Jordan, Manning & Co., and that Wm. Manning was a member of said firm of Jordan, Manning & Co., he would not be an innocent purchaser without notice, and any debt that the said La Fayette Maroney was owing the firm of Jordan, Manning & Co. can, with the consent of the other member of the firm of Jordan, Manning & Co., use the said indebtedness of La Fayette Maroney...